Drader v. Abbotsford (City), 2012 BCSC 873

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Drader v. Abbotsford (City), 2012 BCSC 873 Date: 20120614 Docket: S14735 Registry: Chilliwack Between: Eugene Drader Plaintiff And City of Abbotsford Defendant Before: The Honourable Madam Justice Watchuk Reasons for Judgment Counsel for the Plaintiff: D. Stander Counsel for the Defendant: R. P. Saul Place and Date of Trial: Chilliwack, B.C. June 6-10, 13-17; and August 2-4, 2011 Place and Date of Judgment: Vancouver, B.C. June 14, 2012 TABLE OF CONTENTS I. INTRODUCTION .. 3 II.

DEFINITIONS .. 3 III. ISSUES .. 3 IV. FACTUAL BACKGROUND .. 3 A. The Land . 3 B. Chronological Overview .. 3 C. 1996 Action and Settlement 3 1. The Minutes of Settlement (“the MOS”): 3 2. The Statutory Right of Way (“the ROWA”): 3 3. Release . 3 V. EVIDENCE AT TRIAL AND FINDINGS OF FACT .. 3 A. Witnesses . 3 B. The Plaintiff’s Evidence regarding his Property . 3 C. Expert Witnesses . 3 1. Overview .. 3 2. Plaintiff’s Expert Witnesses . 3

a) Matthew J. Kokan . 3

b) Dr. Stephen Ramsay . 3 3. Defendant’s Expert Witnesses . 3

a) Mark T. Bradshaw .. 3

b) Christopher T. Coles . 3

c) Chris Johnston . 3 D. The Evidence Regarding the Overflow Events and the Finding . 3 E. The Evidence Regarding the Flow of Water through the Right of Way and the Finding 3 1. The Opinion Evidence of Dr. Ramsay . 3 2. The Opinion Evidence of Mr. Coles and Mr. Johnston . 3 VI. POSITIONS OF THE PARTIES .. 3 A. Plaintiff’s Position . 3 B. Defendant’s Position . 3 VII. DISCUSSION .. 3 A. Nuisance . 3 1. The Ditch . 3 2. The Right of Way . 3

a) ROWA para. 5 . 3

b) s. 315.2 of the Local Government Act 3 i. Overview .. 3 ii. Water from a highway . 3 iii. The most convenient natural watercourse or waterway . 3

c) s. 33 of the Community Charter 3 B. Negligence . 3 1. The Ditch . 3 2. The Right of Way . 3 3. Ravine Below the Property . 3 C. Breach of Contract 3 1. Dispute Resolution Provision . 3 2. Implied Term of Safety . 3 VIII. INJUNCTION .. 3 IX. CLAIM FOR WORK TO BE DONE FOR THE NEIGHBOUR .. 3 X. DAMAGES .. 3 XI. CONCLUSION .. 3

SCHEDULE A .. 3 I. INTRODUCTION [ 1 ] The Pemberton Hill area of Abbotsford lies south of the Fraser River at a gentle bend in the river. It was formed at the end of the last ice age, about 11,000 years ago.

[ 2 ] Water from the hill drains down, outward and away from the hill. On the north side of the hill there are now a number of deeply incised ravines or gullies. [ 3 ] The land owned by the Plaintiff is part of the Pemberton Hill area. Historically, some water drained down the gully on the property. The City has since constructed ditches and culverts to manage the drainage in the area. One of the ditches directs water to this gully. [ 4 ] The quantity of and effect of the water draining from the ditch to this gully is at the source of the many issues arising. II.

DEFINITIONS [ 5 ] Prior to outlining the issues, for the purposes of clarity and consistency, the following terms are defined in accordance with their usage by the witnesses. The Property is shown in a copy of the survey drawing which is attached as

Schedule “A” to these Reasons: • 1996 Action : Action No. S6532 which was initiated by the Plaintiff against the Defendant on October 10, 1996. A consent dismissal order was entered on June 20, 2001. • Berm : An earth dam constructed in the Ditch and located immediately to the east of the Notch.

In the absence of the berm, the flow of water would continue east. • City : The Defendant City of Abbotsford in which the Property is situated. • Culvert: The 500 millimeter steel pipe which facilitates the passage of water in the Ditch beneath the Driveway. • Ditch : The roadside ditch which runs along the north side of Marsh McCormick Road and the southern boundary of the Property. • Drader Ditch : The ditch, constructed by the Plaintiff, which joins the Ditch at a point immediately west of the Culvert and extends from the Ditch in a northerly direction along the western boundary of the Property to a low point on the Property. • Driveway : The Driveway which connects the Property to the Road and which passes over the Culvert. • Expropriation Action : An application for determination of compensation filed by the Plaintiff as Claimant against the Defendant as Respondent on July 22, 1997 and assigned E.C.B.

Control No. 39/97. • Hangar: A building constructed by the Plaintiff on the Property completed for use in early 1995 and used by the Plaintiff to store his helicopter. • Helipad/Pad : A concrete slab constructed by the Plaintiff adjacent to the Hangar. • Memorandum of Settlement (MOS) : The Memorandum of Settlement dated June 20, 2001, executed by the Plaintiff and the Defendant. • m 3 /s: Cubic meters per second which is a measurement of the flow of water. • Neighbour Property : The property with the municipal address 29399 Marsh McCormick Road which is to the east of the Property.

The Ravine continues in a north-east direction on this property. • Notch : A gap in the northern bank of the Ditch to the east of the Driveway. Water from the Ditch flows through the Notch into the Right of Way. • Overflow Event(s) : The occasions on January 29 and 30, 2004 and January 13, 2006, when water from the Ditch flowed north into the Drader Ditch as it over-topped the Culvert.

The water then flooded the Driveway and flowed into the Ravine. • Project : The placing of “rock fill for the purpose of restricting, as much as is practically possible, erosion of the bed of the stream which flows through the Ravine over property which includes but is not limited to the Drader Property” as defined in s. 4(

b) of the MOS. • Property : The 10 acre rural residential property with the municipal address 29325 Marsh McCormick Road, which is registered in the name of the Plaintiff and is legally described as Lot “D”,

Section 27, Township 14, New Westminster District, Plan 16713. It is situated at the northern edge of the upland plateau known as the Pemberton Hill, overlooking the Fraser River in northwestern Abbotsford, B.C. • Ravine : A deeply incised gully, and sometimes referred to as “the gully”, which originates immediately north of the Notch and extends in a north-easterly direction through the south-easterly third of the Property toward the Fraser River.

The Ravine continues on to the Neighbour Property. • Release : The Full and Final Release dated June 20, 2001, executed by the Plaintiff. • Right of Way : The Right of Way described in the Statutory Right-of-Way Agreement and shown in a plan attached thereto and which generally follows the Ravine on the Property. • Road : Marsh McCormick Road is a roadway within the bounds of the Defendant Municipality which runs approximately in an east-west direction and provides road access to the south end of the Property.

• Statutory Right-of-Way Agreement (ROWA) : The agreement made March 26, 2001, which is

Part 2 to a general instrument dated June 28, 2001 and was executed by the Plaintiff on June 20, 2001. III. ISSUES [ 6 ] The issues raised by the Plaintiff are: nuisance, negligence and breach of contract with regard to three areas of the Property and surrounding area: the Ditch, the Right of Way, and the Ravine including the Property and the Neighbour Property. [ 7 ] The Plaintiff states that the two Overflow Events were due to the capacity of the Culvert not being sufficient to handle the flow of water in the Ditch.

He further alleges that the flow of water in the Right of Way is excessive or that it exceeds 1.5 m 3 /s. [ 8 ] The Plaintiff seeks damages including damages for nuisance and negligence as a result of erosion and damage to the Property; aggravated damages and punitive damages as a result of the City acting in a high-handed and arbitrary manner; and damages for emotional and mental distress.

He also seeks special costs. [ 9 ] The Plaintiff seeks an injunction to restrain further diversion of the water through the Right of Way. [ 10 ] The City says that its decisions regarding management and operation of its drainage works are bona fide policy decisions not subject to review. [ 11 ] The City relies upon the provisions of the Right of Way Agreement, the Minutes of Settlement and the Release which were signed by the Plaintiff. [ 12 ] The City further relies upon the provisions of the Local Government Act , R.S.B.C. c. 1996, c. 323 (“ LGA ”) particularly ss. 288 and 315.2. [ 13 ] Alternatively, the City alleges contributory negligence on the part of the Plaintiff. [ 14 ] A preliminary issue raised by the City is the absence of any apparent relationship between the Overflow Events which form the basis for the causes of action, and the damages which are claimed by the Plaintiff.

The damages sought appear to relate to the ongoing diversion of water from the Ditch through the Ravine, rather than being a result of two discreet events. [ 15 ] The City states that these two events have been converted into a claim for remediation of the entire Ravine or renegotiation of the ROWA. IV. FACTUAL BACKGROUND A. The Land [ 16 ] Pemberton Hill has an elevation of approximately 150 meters. It is approximately 3 kilometers wide in its east-west direction. It slopes gently downward to the south.

The northeast and northwest slopes are steeper and are incised by gullies or ravines approximately 100 to 200 meters apart. Some of the natural drainage flows down these gullies. [ 17 ] There is a creek, referred to as the Unnamed Creek, which flows south and east to the river on the upstream side of the bend in the Fraser River. It also carries drainage from Pemberton Hill to the river. [ 18 ] The Road runs east and west and essentially divides Pemberton Hill into north and south areas.

It was constructed prior to 1938. [ 19 ] The Ditch has been on the north side of the Road since at least 1938 as is shown in historical photographs. [ 20 ] Historical photographs also show that the Pemberton Hill area was at one time treed. The area is now rural residential. [ 21 ] The Property is on the north side of the Road. It is in the shape of a long narrow rectangle with the north end of the rectangle fronting on the Road. The Ravine runs in a north-easterly direction through the southeast corner of the Property.

The Driveway to the house and the Hangar are at the south-west corner. [ 22 ] Between the north boundary of the Property and the Fraser River are lands owned by the Greater Vancouver Regional District (GVRD), and railway tracks which run parallel to the river. B. Chronological Overview [ 23 ] Mr. Drader purchased the Property in 1989 in order to build a home for his family and facilities for the operation of his helicopter logging business.

At the time of purchase, the land was vacant. [ 24 ] In 1989 when the Culvert was installed under the Driveway to the Property, the City made the Notch in the bank above the Ravine to the Ditch’s north side to divert the ditch water through the Property. [ 25 ] In 1992, the Notch was enlarged and the Berm was added in the Ditch adjacent to and south of the Property. From that time, all ditch water to that point flowed into the Ravine rather than the 90% previously diverted.

[ 26 ] The home was competed in 1992, and the Hangar was built between 1993 and 1995. Substantial clearing of the Property was done in the course of construction. [ 27 ] Abbotsford Municipal Policy No. 900-5-04 was approved by Abbotsford City Council on January 1, 1995.

It states: The maintenance of City facilities, such as roads, lanes, sidewalks, curbs, gutters or installations placed within roads, lanes or sidewalks, which are part of the sanitary or storm sewer, drainage or water utility system, including those facilities within park or public recreation areas, shall rely solely on reports of observed defects by the city staff or members of the public. [ 28 ] The Plaintiff constructed the Drader Ditch to run north-south on the west side of the Property between 1993 and 1996. [ 29 ] In April, 1996, a slope failure occurred within the headwall area of the Ravine.

As a result, a large and treed chunk of land next to the Hangar and Driveway travelled through the Ravine on the Property and the Neighbour Property and was deposited at the bottom of the Ravine on GVRD and CN railway lands. [ 30 ] Litigation ensued; the 1996 Action was commenced. After five years a settlement was entered into at a Settlement Conference with Mr. Justice Burnyeat. [ 31 ] As a result of the settlement, the parties signed the Release and a Memorandum of Settlement and Mr. Drader granted the City of Abbotsford the Right of Way through his land.

He received a sum of money for the Project which was to place rock fill at the base of the Ravine on property including the Property and the Neighbour Property. [ 32 ] Mr. Drader carried out part of the Project with the money provided by the City and his own money.

However, it was not possible to complete the Project in the Ravine on the Neighbour Property as the easterly neighbours at the time would not give permission for access to or remediation of their portion of the Ravine. [ 33 ] In January 2004, the first Overflow Event occurred, during which the level of the ditch water exceeded the top of the Culvert, flowed into the Drader Ditch, crossed the Property and Driveway, and entered into the Ravine from its top, resulting in some erosion rills and damage to the Driveway. [ 34 ] This Overflow Event, and the concerns of Mr.

Drader regarding the water-handling ability of the City’s drainage system, which involved its Ditch, its Culvert under Mr. Drader’s Driveway, the Notch into the Property, and the Ravine, were brought to the attention of the City of Abbotsford. [ 35 ] This led to this matter being brought before the Court, by way of first an attempt to revive the 1996 Action, and then a new action in 2004. The 2004 action was to be set for hearing before Mr. Justice Burnyeat in accordance with the Plaintiff’s

interpretation of the dispute resolution provisions of the settlement agreement. [ 36 ] However, the City of Abbotsford contested the matter coming before Mr. Justice Burnyeat. In the final result, Mr. Justice Burnyeat excused himself. [ 37 ] In January 2006, the second Overflow Event occurred with storm water exceeding the top of the Culvert, flowing across the Drader Driveway, and into the Ravine. [ 38 ] The City did repairs to the Drader Driveway.

However it declined to accept any responsibility or take any steps to abate the ongoing erosion and slippages which were occurring in the Ravine. [ 39 ] In 2008 and 2009, because of his concerns regarding the bank below the Hangar and the home, Mr. Drader undertook, at his own expense, various activities in shoring up the banks, including the dumping of thousands of kilograms of rip rap into areas identified as unstable. This work was carried out with the advice and supervision of GeoPacific Consultants [ 40 ] It is Mr.

Drader’s evidence that the Property continues to suffer from erosion, instability, and subsidence including large areas of the bank below the house and Hangar. C. 1996 Action and Settlement [ 41 ] The slope failure on the Property in April 1996 was the genesis of the 1996 Action. [ 42 ] The 1996 Action was settled in June, 2001 together with an Expropriation application which is not relevant to the present action.

That settlement was reflected in three documents: (1) the Memorandum of Settlement (“MOS”); (2) the Statutory Right of Way Agreement (“ROWA”); and (3) the Release. [ 43 ] The relevant terms of the MOS, ROWA and Release are set out below. 1. The Minutes of Settlement (“the MOS”): WHEREAS each of these actions relate to a landslide which occurred on April 23, 1996 in a ravine (the “Ravine”) located at 29325 Marsh McCormick Road (the “Drader Property”); ...

AND WHEREAS as a part of such a settlement all parties except for the Greater Vancouver Regional District wish to provide for certain renovation work to be carried out within the Ravine and to establish a Ravine Renovation Trust Fund from which to pay for that work

(the “RRTF”); …Action No. S6532 will be referred to as the “Drader Action”, Action No. C970690 will be referred to as the “GVRD Action” and Action E.C.B. No. 39/97 will be referred to as the (“Expropriation Action”); 1. Settlement of the Drader Action With respect to the Drader Action, the parties to that action agree as follows: (

a) The Plaintiffs shall forthwith execute and forward to the Defendant a Consent Dismissal Order and a full Release…; (

b) The Plaintiffs shall grant to the Defendant a right-of-way through the Ravine for the purpose of accommodating the flow of water from the ditch which borders the north side of Marsh McCormick Road and which enters the Ravine at its southerly end and flows in a north easterly direction through the Ravine…; (

c) Except as the Right-of-Way may expressly provide, it shall not constitute any restriction or limitation upon those rights which the Defendant may have under

Section 560 of the Municipal Act. … (

e) Immediately upon registration of the Right-of-Way at the Land Title Office, to occur no later than the Disbursement Date, the Defendant shall: (

i) pay to the Plaintiffs’ solicitor, Brent Lokash, in trust, an amount of $45,000; and (ii) pay to the RRTF an amount of $130,000. ... 4. Administration of the RRTF All parties agree that: (

a) the RRTF shall be an interest bearing trust account…; (

b) the RRTF shall be used to pay all costs incurred from and after February 28, 2001 related to the placing of rock fill for the purpose of restricting, as much as is practically possible, erosion of the bed of the stream which flows through the Ravine over property which includes but is not limited to the Drader Property (the “Project”) . These costs shall include but not be limited to the costs of design, administration, permit application, materials and labour; (

c) No work on the Project shall be carried out on any property but the Drader Property without the written consent of the property owners; (

d) It is the intention of the parties that the Project shall be a compromise of the work recommended by GeoPacific Consultants Ltd. in a report to D.K. Heli-Cropper Int’I Ltd. dated November 21, 2000 and the work recommended by Golder Associates in a report to Messrs. Alexander, Holburn, Beaudin & Lang dated January 9, 2001 ; (e) …No party shall be obliged to contribute any additional funding to the RRTF for whatever purpose. The cost of the Project shall not exceed $130,000; (

f) Immediately after the RRTF has been fully funded, Mr. Matt Kokan of GeoPacific Consultants Ltd. (“GeoPacific”), shall be retained and instructed by Eugene Harold Drader to proceed with the Project by preparing a design and a budget and completing all necessary permit applications by July 1, 2001 at the latest; … (

k) Upon completion of the Project and payment of all related costs, any funds still remaining in the RRTF, including any interest which may have accrued, shall be paid directly to Eugene and Julia Drader or as they may direct. 5. Dispute Resolution All parties agree that: (

a) each of them will make their best efforts to do everything necessary to ensure that the Project is completed in accordance with this Memorandum. (

b) to the extent that a dispute arises among the parties concerning the rights and obligations of the parties set out in this Agreement, which the parties in good faith cannot resolve on their own, the dispute shall, at the instance of any one party, be submitted to Mr. Justice Grant Burnyeat of the Supreme Court of British Columbia for

summary resolution. For this purpose all parties agree that notwithstanding the dismissal of the Drader and GVRD Actions, Mr. Justice Burnyeat shall remain seized with both of these matters. All parties consent to be bound by any Order which Mr. Justice Burnyeat may make. ... (Underlining added.) 2. The Statutory Right of Way (“the ROWA”):

EUGENE HAROLD DRADER ... (the “Grantor”); CITY OF ABBOTSFORD ... (the “City”); A. …Grantor is the registered owner…; B. The Grantor will construct and maintain the Works defined herein; C.

The City requires, and the Grantor has agreed to grant to the City, the Statutory Right-of-Way defined herein; ... 1. …Grantor does hereby grant, in perpetuity, to the City a Statutory Right-of-Way and the full, free, uninterrupted, and unrestricted right and liberty at all times to : (a) ..lay down, construct, operate, inspect, maintain, alter, enlarge, remove, repair, replace, renew, or otherwise service the Statutory Right of Way running from the road side ditch running along Marsh McCormmick Road (the “Ditch”), through a notch an adjacent to the Ditch and then through the Lands, which the Statutory-Right-of-Way permits the discharge of water from the Ditch through the Lands, together with all ancillary attachments and fittings. (the “Works”) to facilitate the construction, operation, and maintenance of the Works; (

b) bring on to the Statutory Right-of-Way all materials and equipment it requires or desires for the foregoing purposes; (

c) clear the Statutory Right-of-Way and keep it clear of anything which, in the opinion of the City, constitutes, or may constitute, an obstruction to the use of the Statutory Right-of-Way or to the Works; (

d) cross over the Lands for reasonable access to the Statutory Right-of-Way, and make reasonable ancillary use of the Lands in respect of the Works; and (

e) do all acts which, in the opinion of the City, are incidental to the foregoing. 2. The Grantor hereby covenants and agrees with the City : ... (

f) to construct and, subject to

Section 4, maintain, at its own costs, the Works and the Statutory Right of Way to standard acceptable to the City ; (

g) that, should the Grantor fail to maintain the Works as required herein, the City may, but is not obligated to, at any time upon 30 days written notice from the City to the Grantor, and at any time, if in the opinion of the City, an emergency exists, at the cost of the Grantor take whatever action the City, in its sole discretion, deems necessary to bring the Works up to standards acceptable to the City, the costs of which may be added to the municipal taxes on the Lands; and (

h) subject to

Section 5, to indemnify and hold harmless the City from and against all manners of action, causes of action, claims, debts, suits, demands, and promises whatsoever at law or at equity, whether known or unknown, which the Grantor now has, or may at any time have by reason of the granting, existence or use of the Statutory Right-of-Way or of the Works, or of the carrying out of or failing to carry out of the construction or maintenance of the Works or of the flooding of the Lands or any damages to any improvements on the Lands thereon. 3. The City hereby covenants and agrees with the Grantor that should the City maintain the Works pursuant to

Section 2(g), the City will do all works and things hereby authorized to be done by the City over, through, under, and upon the Statutory Right-of-Way in a good and workmanlike manner…; 4. The City covenants and agree that upon receipt of prior written notice from the Grantor that maintenance is required in that area of the Statutory Right of Way, to: (

a) Maintain the Ditch; and… 5. Should: (

a) the water flow from the Ditch through the Statutory Right of Way exceed the boundaries of the Statutory Right of Way; and (

b) the volume of water flow through the Ditch into the Statutory Right of Way exceed 1.5 cubic metres per second; and (

c) damages occur to the Statutory Right of Way or the Lands that are caused by 1 and 2; the Grantor shall have no obligation to indemnify and hold the City harmless as set out in

Section 2(h) ; ... 7. It is mutually understood, agreed, and declared by and between the parties hereto that:

(

a) all expenses incurred in the initial construction of the Works and the maintenance and repair thereof shall be borne and paid by the Grantor; (

b) despite anything herein contained, there are hereby reserved to the City all its rights and powers of expropriation or other powers reserved to the City or enjoyed by it, by or under any Act of the Legislature of the Province of British…; (Underlining added.) 3. Release FULL AND FINAL RELEASE FOR, AND IN CONSIDERATION of the payment to D.K.

Heli-Cropper Int’l Ltd., and EUGENE HAROLD DRADER and JULIE ANN DRADER, (together the “Releasor”) or to their solicitors, Brent Lokash, of the Province of British Columbia, the sum of $1.00, the receipt of whereof is hereby acknowledged; THE RELEASOR DOES HEREBY REMISE, RELEASE, AND FOREVER DISCHARGE, the CITY (“Releasee”), of and from any and all actions, causes of action, claims, suits, liens, debts, demands, damages, interest, costs, expenses and compensation of whatsoever kind and howsoever arising, whether known or unknown, and which the Releasor now has or any time hereafter can, shall or may have in any way resulting or arising from any cause, matter or thing whatsoever existing up to the present time, and in particular, but without restricting the generality of the foregoing, of and from or in connection with the subject matters of an action commenced by the Releasor as Plaintiff against the Releasee as Defendant in the Supreme Court of British Columbia Action No.

S6352, Chilliwack Registry. IT IS FURTHER UNDERSTOOD AND AGREED that for the consideration herein the Releasor expressly agrees not to make any further claim or take any further proceedings with respect to any matters which are the subject this Release against the Releasee or any other persons, companies, corporations or other legal entities whom might claim contribution or indemnity from the Releasee either in the Provinces of Canada, or elsewhere.

IT IS FURTHER UNDERSTOOD AND AGREED that for the consideration herein the Releasor expressly agrees not to make any further claim or take any further proceedings with respect to any matters which are the subject of this Release against the Releasee or any other persons, companies, corporations or other legal entities who might claim contribution or indemnity from the Releasee either in the Provinces of Canada, or elsewhere. V. EVIDENCE AT TRIAL AND FINDINGS OF FACT A.

Witnesses [ 44 ] The witnesses in the trial were the Plaintiff, his wife and two of his sons, Nicholas and Shane; officers and employees of the City; and expert witnesses on behalf of both parties. [ 45 ] Witnesses from the City were: Art Kastelein, Keijoon Kim, Dick Penner, and Judy Swann. [ 46 ] Five expert witnesses gave evidence at the trial: Matthew Kokan and Dr. Stephen Ramsay testified for the Plaintiff. Mark T. Bradshaw, Christopher T. Coles, and Chris Johnston testified on behalf of the City. Their areas of expertise included geotechnical engineering and hydrology. B.

The Plaintiff’s Evidence regarding his Property [ 47 ] The Plaintiff testified at length regarding the process of clearing the land for the construction of the house, Hangar and Driveway as well as the history of the Property from the 1996 slope failure, the 2004 and 2006 Overflow Events and other erosion and damage that he has observed on the Property. [ 48 ] The Plaintiff describes the 1996 slope failure at the head wall of the Ravine to the east of the Driveway as being on land fully treed at the time. [ 49 ] The remedial works access road is a switchback type road between the Right of Way and remediation works carried out since 2001.

This area is visible in the photographs as a long triangular area covered in large rocks or concrete blocks. [ 50 ] There were slides in 2004 at the bottom of the Right of Way in triangular areas on the Neighbour Property northwest of the forked maple. [ 51 ] Further remedial work was carried out by the Plaintiff in 2008 and 2009 in the area at the bottom of the 2001 remediation works and which extends, as do the 2001 remediation works, a short distance on to the Neighbour Property.

The work was done in 2008 and 2009 by the Plaintiff in order to arrest further landslides. [ 52 ] The area above the 2008/2009 remedial works was shown to Mr. Kim in 2004 as being a slide area. [ 53 ] There is presently an area of movement or continuing slope subsidence below the cat road and to the west of the remedial works access road.

[ 54 ] There are stepped landslides below the point of the triangle formed by the intersection of the cat road and the toboggan slope. Above those stepped slides is an area at the bottom of the intersection of the cat road and the toboggan slope where in 1998 weight was taken off the high point on the advice of the geotechnical engineer, Mr.

Kokan. [ 55 ] In the area adjacent there is a large continuing land slide area which starts at the bottom of the cat road and crosses the Property line to the Neighbour Property in an arc ending at the forked maple. [ 56 ] At present the triangle of land bounded by the eastern portion of the road, the property line of the Neighbour Property and the southerly portion of the Right of Way indicates land sliding towards the Right of Way. [ 57 ] Most recently, just prior to the commencement of the trial in June 2011, a new crack appeared in the Ditch beside Marsh McCormick Road to the east of the Notch and Berm. [ 58 ] Mr.

Drader is passionate about his Property. He has extensive knowledge of it and is able to observe from his helicopter. I accept that his descriptions of these locations are accurate. However, the dates of the subsidence and changes to the Property are not the subject of clear recollection or forthcoming evidence on his part. For example, he could not confirm whether some of the exposed blue clay is a residue of the 1996 slide path. C. Expert Witnesses 1.

Overview [ 59 ] The evidence of the five expert witnesses is set out below and will be discussed further in the sections regarding nuisance, negligence and breach of contract. [ 60 ] The evidence of the expert witnesses is relevant to the factual issues of: whether the flow of water in the Right of Way exceeded 1.5 m³/s; the capacity of the Culvert; the operation of the Culvert at the two Overflow Events; the damage if any to the Right of Way as a result of the flow of water through it; the damage if any to the Property as a result of the flow of water in the Right of Way; and the damage to the Property from erosion on the Neighbour Property if any and its cause.

It is also relevant to the question of whether the Ravine is a natural waterway or watercourse. [ 61 ] Mr. Kokan and Mr. Bradshaw were the geotechnical engineering experts. Dr. Ramsay, Mr. Coles and Mr. Johnston were qualified as experts in hydrology. 2. Plaintiff’s Expert Witnesses

a) Matthew J. Kokan [ 62 ] Matthew Kokan of GeoPacific Consultants Ltd. gave expert evidence on behalf of the Plaintiff. He has a Masters Degree in Applied Science, Civil Engineering and a Bachelor of Applied Science in Geological Engineering and was qualified as a geotechnical engineering expert with regard to slope stability factors. Mr. Kokan is very familiar with the Property having been retained by the Plaintiff in 1996 after the slope failure. He provided technical assistance to Plaintiff’s counsel for the 1996 Action.

He was present at the Settlement Conference and advised on the stabilization of the Ravine. [ 63 ] Six reports authored by Mr.

Kokan or GeoPacific Consultants Ltd. were filed and he gave evidence at the trial regarding the reports, observations and opinions. [ 64 ] The first geotechnical report of GeoPacific Consultants is dated March 2, 2004, and describes a visit to the Property on February 10, 2004, as a result of a request from the Plaintiff to visit the Property after the first Overflow Event in January 2004. [ 65 ] It describes erosion rills that developed in the Driveway as a result of the water overtopping the Drader Ditch. It concludes that the volume of water exceeded the capacity of the Culvert.

The report does not consider the possibility that the Culvert was blocked or restricted. [ 66 ] The first report continues with a discussion of the Ravine below the Drader Property and states that: “As a consequence of the lack of support at the toe of the slope, a number of landslides have developed above the base of the Ravine and appear to be propagating up the slope”. [ 67 ] It further states: If the City of Abbotsford continues to allow water to enter into the top of the Ravine then we would expect down cutting to continue.

Either the volume of water entering the Ravine should be controlled and maintained at historical levels (below current levels) or the water should be carried down the ravine in a pipe. Regardless it may be necessary to stabilize the bottom of the ravine now that the slopes have become unstable. This could take the form of infilling the ravine below the area that has been recently done. [ 68 ] The second report, dated September 11, 2007, is authored by Mr. Kokan.

The purpose of the visit for the report was to “assess the effectiveness of the stabilization measures implemented in the summer of 2001 and to determine if additional measures were required to stabilize the 29325 Marsh McCormick Road property”. [ 69 ] Mr. Kokan concludes that “The treatment areas as well as the slopes adjacent to the treatment area appear stable. No obvious changes to the slopes were visible during my visit”. I note that the treatment areas referred to were included in the Project as described in the MOS.

[ 70 ] Mr. Kokan describes the Ravine on the Neighbour Property which is below and to the northeast of the Ravine on the Property. He states as follows: My examination of the northern extent of the stabilized zone revealed very significant erosion and down cutting of the unprotected channel base and slopes to the north of the rock fill stabilized channel. The channel base north of the stabilized area is on adjacent private property (29399 Marsh McCormick Road) and therefore was not stabilized during the original stabilization program since access was not available on the adjacent property.

As indicated in our original cost estimate for restoration, dated December 28, 2000, the original intent of the stabilization program was to fill the ravine base with rock both on 29325 and 29399 Marsh McCormick Road. Since access to 29399 Marsh McCormick Road could not be secured during the time of the 2001 channel restoration program, the recommended work was never completed . Based on my observations, I would estimate that the ravine channel has been down cut by between 0.5 and 1.0 meters north of the treatment area since the summer of 2001.

The down cutting has resulted in fresh soil exposures along the lower ravine slopes. Photo 2, below shows the condition of the slope immediately down slope and north of the treatment area. ... The stabilization works undertaken in 2001 appear to have been largely successful in controlling further down cutting in the base of the ravine on the 29325 Marsh McCormick Road property. This is evident from the stable condition of the slopes on both sides of the ravine fill.

In contrast, down cutting has continued north of the stabilize area, and this down cutting has destabilized the slopes on both the wet (sic) and east sides of the ravine. (Underlining Added.) [ 71 ] I note that the Project contemplated work on the Property and on the Neighbour Property. [ 72 ] Mr. Kokan provides in this report a cost estimate to complete the repair and stabilization recommended on the portion of the Ravine that is located on the Neighbour Property and is directly below the Property. [ 73 ] He refers to the Culvert having overtopped on a “number of occasions”.

He expresses concern about the capacity of the Culvert. The assumption is that the Culvert is functioning and inadequate for the flow. He also provided an estimate for the Driveway and slope repairs due to surface water flows down the Driveway and into the top of the slope area. For the Driveway the estimate was $4,150 and for fill in the Ravine on the Neighbour Property it was $193,000 plus GST. [ 74 ] Mr. Kokan reviewed the report of Dr. Stephen Ramsay in his report dated December 3, 2010. He concludes that there are no changes necessary to his September 11, 2007, report as a result of the report of Dr. Ramsay.

His conclusion remains that the cause of the erosion is that excess flows are being directed into the Ravine on the Property, and that the repair costs remain applicable. [ 75 ] Mr. Kokan also notes that although the enclosed pipe option was to be preferred, the solution of placing rock fill in the Right of Way appears to have been effective on the Property.

He notes that the owner of the Ravine on the Neighbour Property below the Right of Way has benefited from the work done on the Right of Way as it has re-supported the Ravine slopes on both sides of the Ravine. [ 76 ] The report of March 14, 2011, confirms that “erosion is ongoing in the base of the Ravine east of your [Mr. Drader’s] eastern property line”. He also notes continued down-cutting of the Ravine bottom in the Neighbour Property, and movement of materials from the Ravine slopes into the base of the Ravine and down the Ravine. [ 77 ] Mr.

Kokan describes a number of changes observed within the Ravine since September 2007, including on the Property, the “progressive movement of a failure surface perpendicular to the ravine, on your property, just below the main residence. [ 78 ] Mr. Kokan’s preferred solution remains the closed pipe option from the Ditch to the base of the Ravine. He was requested to consider a repair to achieve a longer 50 year design life for the slopes adjacent to the Ravine. The total cost for phase 1 which includes rock fill, design, engineering, equipment and labour is $366,600.

For phase 2 involving culvert installation the additional costs are $211,137 for a total of $577,737 plus HST. [ 79 ] The location of the majority of the rock fill work would be on the Neighbour Property. He notes: ... A significant amount of rock fill would be required to in fill the eroded base of ravine and support the culvert and the majority of this work would be done on property owned by others.

Right of way would need to be established to permit this work to be done as well as to permit the culvert to me (sic) maintained. ... ... coarse rip rap fill is also required within the ravine on the 29399 Marsh McCormick Road to stabilize the lands directly below the main residence at 29325 Marsh McCormick Road. As shown on the photos in Appendix A, the base of the ravine continues to be down cut by the flow of water and the amount of fill required to stabilize the base of the ravine and the rise of future soil movements on both sides of the ravine will continue to increase over time. [ 80 ] Mr.

Kokan reviewed the report of Mr. Bradshaw which was prepared on behalf of the Defendants. His comments are found in his letter dated April 5, 2011. Mr. Kokan agrees with Mr. Bradshaw’s observations and opinions in some areas. He agrees that there are slope failures within the gully on the Property that are not related to the water flow within the creek channel, although he notes that those are generally along the upper slopes of the gully. He notes that the erosion at the base of the gully is not being experienced elsewhere in the Pemberton Hill area. [ 81 ] Mr. Kokan refers to the history.

He understands that the ditches were constructed on the north and south sides of Marsh McCormick Road in 1963 and that they increased the drainage which naturally flowed into the head of the gully. The Notch and Berm later installed further increased the drainage into the gully.

[ 82 ] Mr. Kokan agrees with Mr. Bradshaw’s opinion that the rock fill in the Right of Way has provided a stabilizing effect on the adjacent slopes. However, he says that there has been some settlement and shifting that would require additional fill. [ 83 ] Mr. Kokan agrees with Mr. Bradshaw’s opinion that the Overflow Events did not destabilize the fill materials in the gully. [ 84 ] Mr. Kokan also agrees that the rock fill within the gully on the Property has buttressed or supported the lower gully slopes on the Property. [ 85 ] The area of disagreement between Mr. Kokan and Mr.

Bradshaw is with respect to the cause of instability in the lower portion of the gully which is northeast of the Property on the Neighbour Property. Mr. Kokan notes that significant erosion is ongoing in that portion of the Ravine and that a step has developed in the channel bottom below the protective coarse rock fill. The estimated result is the equivalent of “2.4 meters over 10 years which is a very high rate of slope loss and well beyond what would be expected in a natural gully setting”. Mr.

Kokan does not agree that the cause is the 1996 slope failure which removed the protective cover. [ 86 ] The last report from Mr. Kokan is dated June 7, 2011, as a result of his visit to the Property on June 4, 2011, regarding a recent instability in the Ditch adjacent to the Property and east of the Berm. The new crack is on the south side of the gully extending about 20 meters east to west with maximum separation of 1.2 meters. Mr.

Kokan concludes that he has insufficient information to determine the cause of the movement but states that it is possibly as a result of ditch water seeping into smaller pre-existing cracks. [ 87 ] Mr. Kokan testified that he does not believe that the recent crack is related to something below, such as the work in the Right of Way, but to something above, such as water in the Ditch, coming from the Road percolating down and causing lubrication on the other side. [ 88 ] The reports and evidence of Mr.

Kokan conclude that the rock fill placed within the gully on the Property (which is the Right of Way on the Property) has been effective in stabilizing the area of the Ravine on the Property. Minor additions have been done to fill depressions. The 2004 and 2006 overflow events did not affect the stability of the Property. [ 89 ] It is Mr. Kokan’s opinion that the ongoing erosion in the lower Ravine on the Neighbour Property is the cause of some of the slumping on the Plaintiff’s Property. Down cutting in that part of the Ravine is releasing carpets of soil in the direction of the centre of the Ravine.

This is progressing backwards toward the Property such that the western limit is below the cat track on the Property. The direction of movement is down slope and the shape of the affected area is long and narrow. [ 90 ] The work recommended by Mr. Kokan for the Neighbour Property is an update of what was originally contemplated by the Project described in the MOS and which was not then done. It is now referenced in 2011 dollars and with the longer 50 year return period. Notwithstanding the longer time period, the Project work completed on the Property remains effective.

b) Dr. Stephen Ramsay [ 91 ] Dr. Stephen Ramsay is an environmental engineer having obtained a Bachelor of Science Degree in Civil Engineering and a Master of Science Degree in Mechanical Engineering from the University of British Columbia and a PhD in applied Mathematics and Theoretical Physics from the University of Cambridge. His expertise includes air quality management, risk assessment, process design, optimization, and project management. [ 92 ] Dr. Ramsay refers to himself as an Environmental Engineer. Hydrology makes up a substantial part of his work.

Hydrology is the study of the distribution, the improvement and the quality of water on the surface of the earth. [ 93 ] He also has expertise in matters related to engineering meteorology which is related to hydrology. He was qualified to give expert evidence as a hydrological expert regarding the hydrological factors relevant to the case at bar. He was not tendered as a geoscientist or as a geotechnical engineer. [ 94 ] In his report titled “Analysis of Hydrological Factors contributing to gully Erosion and Instability at 29325 Marsh McCormick Road, Abbotsford, B.C.” on behalf of the Plaintiff, Dr.

Ramsay addresses questions posed to him. The following is a

summary of his “Summary and Conclusions” of the questions and his responses: 7.

SUMMARY & CONCLUSIONS … 1. Does the right-of-way through the gully located on the Drader property accommodate the flow of water which comes from the ditch which borders the north side of Marsh McCormick Road, enters the gully at the southerly end, and flow in a north-easterly direction though the gully? a. No. The gully does not accommodate the flow of water from the ditch on the north side of Marsh McCormick Road. b. We distinguish here between: i. The “natural” drainage pattern for the Drader gully i.e. the drainage associated with the long term geological history of the area surrounding area, and ii.

The “current” drainage pattern due to the construction of the berm in the ditch on the north side of Marsh McCormick Road and diversion of the flow from the ditch into the Drader gully. c. Hydrological analysis indicates that the natural drainage basin of the Drader gully is approximately 1.63 ha. Due to the berm

constructed in the Marsh McCormick ditch and the diversion into the Drader gully the drainage basin for the Drader gully has been increased to approximately 14.7 ha. Hence the drainage area contributing to flow into the Drader gully has been increased by a factor of approximately 8. … e. The corresponding drainage flows have been determined using hydrological analysis using the TR55 model and a Type III storm. The drainage flow to the Drader gully from the natural drainage basin is approximately 0.18 m³/s based on a 10 yr storm.

The flow into the Drader gully from the current drainage is 1.49 m³/s based on the same storm. ... f. Due to the increased drainage area contributing to flow into the Drader gully and consequential increase in flow into the Drader gully the erosion rate in the Drader gully has increased. This is the primary mechanism associated with the erosion and instability observed in the Drader gully. 2. Can the gully on the Drader property safely and properly handle the water flowing through the right-of-way? a. No. The Drader gully cannot accommodate the flow of water flowing through the right-of-way. … 3.

Has the right-of-way in the gully experienced water flows in excess of 1.5 cubic meters per second since March 26, 2001? In particular, has this occurred on January 29, 2004 and January 13, 2006? a. Yes. Flows in excess of 1.5 m³/s have occurred on January 29, 2004 and January 13, 2006. b. Hydrological analysis based on the Abbotsford A meteorological records provides a detailed list of occurrences of flows exceeding m³/s into the Drader gully. c. On the basis of hydrological analysis the storm on or about January 13, 2006 would produce at flow into the Drader gully exceeding 1.5 m³/s. d.

The AES (Atmospheric Environment Service) IDF (Intensity Duration Frequency) curves for Abbotsford A indicate that flows in excess of 1.5 m³/s have occurred into the Drader gully. e. On the basis of the hydrological model flows in excess of m³/s will occur into the Drader gully approximately once every 10 years. … 4. Given the topography of the lands adjacent to the gully, and the hydrological factors involved, can it be expected that the right- of-way will receive flows in excess of 1.5 m 3 /s? If so, how frequently will this occur? a. Yes.

Hydrological analysis, which includes an analysis of the topography of the area surrounding the Drader property to determine the drainage basin (natural and current) of the Drader gully indicates that flows in excess of 1.5 m³/s will occur more frequently with recent trends to more intense storms. … 5. Has there been sloughing, subsidence, or erosion of the lands directly adjacent to the right-of-way, specifically the banks above the water course through the gully, since 2001? If so, what is the cause of this erosion? a. Yes. Sloughing, subsidence and erosion have occurred and are evident in the Drader gully. b.

The approximate date of the erosion events can be determined from the disturbance of the overlying vegetation (eg grass). The sloughing or slumping is occurring at a rate exceeding the rate of growth of the overlying vegetation. Furthermore, this sloughing or slumping is not observed in other gullies along the perimeter of Pemberton Hill that are not subjected to increased flow above that due to their natural drainage areas. c. The primary mechanism for the erosion observed in the Drader gully is flow induced erosion (i.e. gully erosion) which is a well understood phenomenon.

There is an extensive literature on gully erosion and the factors contributing to gully erosion. d. The gully erosion process involves the removing of sediment and transport downstream by the flow of water. Eventually, the erosion leads to instability of the banks of the gully. 6. If there has been erosion, and it has occurred since 2001, what issues does this raise for the efficacy of right-of-way as a drainage system, and can the gully continue to be used safely as it is currently being used as a water course by the City of Abbotsford (in particular, with reference to the safety of Mr.

Drader, his family, his property, or his neighbours’ property)? a. The flow of water in the gully exceeds the natural capacity of the Drader gully. b. Due to the flow exceeding the natural capacity of the Drader gully erosion rates are increased leading to increased removal of sediments from the gully and a tendency towards instability in the slopes of the Drader gully. c.

The Drader gully cannot continue to handle the flow from the current drainage area (i.e. due to the berm and diversion in the ditch on the north side of Marsh McCormick Road) without continued erosion and instability as the gully adjusts to the current flow.

7. Are the lands (Mr. Drader’s property) being damaged as a result of the use of this gully as a water course? Is so, then what observations can be made regarding the volume of water going through the gully in comparison to historical volumes, erosion and the speed at which it is occurring, the potential for further erosion or subsidence, or any other observations relating to damage to the Lands? a. Yes.

The Drader property (and other adjacent properties) are being damaged due to the higher erosion rates associated with the current drainage area and corresponding flow compared with the natural drainage area and corresponding flow. b. The comparison of current flows with natural flows is given above. 8. Did the removal of vegetation by Mr. Drader above the gully prior to the landslide event in 1996 cause or contribute, in any significant way, to the landslide which occurred in 1996? a.

It is possible that the removal of vegetation in the Drader gully contributed to some instability of the slopes of the Drader gully. It is generally understood that vegetation contributes to the stability of slopes. b. The primary mechanism involved in the erosion and instability observed in the Drader gully is associated with the channel at the base of the gully. This area is outside the area where any vegetation has been disturbed. Furthermore, the instability mechanism is associated with under-cutting and sloughing near the active gully channel. 9. Has Mr.

Drader’s construction of a drainage ditch, which runs in a north-south direction along the western boundary of his property, and intersects with the City of Abbotsford’s drainage ditch running along the northern edge of Marsh McCormick Road contribute at all, or in any significant way, to the overflow events of January 29, 2004, or January 13, 2006 at which time water crossed the Drader Driveway and entered into the gully? a. The ditch which runs in the north-south direction along the western boundary of the Drader property lies entirely within the natural drainage basin of the Drader gully.

The direction of the ditch approximates the natural flow direction in the natural drainage basin. As such, the ditch does not contribute any additional water to the ditch running on the north side of Marsh McCormick Road and the ditch does not alter the overall drainage patterns associated with the natural drainage to the Drader gully. … 10. Is Mr. Drader’s north-south drainage ditch on his property causing erosion, if any, within the gully on his property? a. The north-south drainage ditch does not modify or change the flow in the ditch on the north side of Marsh McCormick Road or the Drader gully.

The north-south drainage ditch lies entirely within the natural drainage basin of the Drader gully and does not contribute to the erosion in the gully in any significant way. ... 11. Does Mr. Drader’s north-south drainage ditch on his property affect at all, or in any meaningful way, the historic drainage pattern of the area surrounding Mr. Drader’s property or the gully? a. The north-south drainage ditch lies entirely within the natural drainage basin of the Drader gully and therefore does not affect drainage to the gully. b.

The north-south drainage ditch conveys water to the ditch along the north side of March-McCormick Road which corresponds to the natural drainage pattern. 12. In order to prevent any further damage to the Drader property, or any further erosion of the gully, what should be done with the water flowing into and through it? Can the gully handle the amount of water that it may, from time to time, receive? Should the water be directed elsewhere? If it is to continue flowing through the gully, is there a manner in which this should occur?

What, in your opinion, is the appropriate level for such a drainage system to be designed for, or for what severity of event would it normally be designed to handle? a. The most obvious corrective action is to remove the berm and diversion in the ditch on the north side of Marsh McCormick Road allowing the flow of water to return to the natural pattern flowing to the east along the north side of Marsh McCormick Road and eventually to the unnamed creek. b. This would also have the effect of reducing the water flow to the Drader gully below natural drainage levels. c.

If the flow of water from the current drainage is to continue in the Drader gully it is likely that the entire water course would need to be contained within a culvert to avoid continuing erosion and damage to the adjacent lands. d.

Further hydrological analysis should be performed to confirm the design values for ditches, culverts etc related to the Marsh McCormick ditch option (natural drainage pattern) however a flow in excess of 3 m³/s is indicated by the preliminary hydrological analysis to accommodate normal flows and those associated with plausible problem conditions (eg blockage of the culvert adjacent to 29095 Marsh McCormick Road). e. The ditch on the north side of Marsh McCormick Road must be properly maintained throughout its length to the point of discharge into the unnamed creek to accommodate this option. f.

The unnamed creek can accommodate this flow based on hydrological analysis which indicates that this is the natural flow pattern for flow originating in the vicinity of Marsh McCormick Road. g. The design return period for the critical design event should be consistent with standard hydrological design practice. The return period for the Drader gully based on the hydrological analysis is less than 10 year which is not adequate. Given the critical slope stability issues and previous instability event as design return period of at least 100 years should be used.

3. Defendant’s Expert Witnesses

a) Mark T. Bradshaw [ 95 ] Mark Bradshaw is a registered professional engineer with a Bachelor of Science Degree in Civil Engineering and a Master of Science Degree in Geotechnical Engineering. He has 25 years of experience in Geotechnical Engineering investigation, design and provision of specialist construction services. He is also familiar with the stabilization and remediation of slope failures located throughout the lower mainland area of British Columbia. He was qualified as an expert witness in the area of geotechnical engineering. [ 96 ] Mr.

Bradshaw was originally retained by the City in 1996 shortly following the slope failure that occurred within the gully at the Property. Since then he has visited the Property on several occasions. [ 97 ] The report of Mr. Bradshaw took the form of questions followed by his analysis and response. The following

summary includes the questions and a

summary of his responses. [ 98 ] The first question is: “What is the form and character of the slope failures that have occurred within the gully located at the southeastern portion of the 29325 Marsh McCormick Road property and nearby sites?” [ 99 ] Mr. Bradshaw addresses two aspects of the Property in this portion of his opinion. With regard to the April 23, 1996, slope failure, he notes that it was preceded by extensive land clearing, vegetation removal, slope disturbance, drainage redirection and fill placement by Mr. Drader within and adjoining the gully.

He states: “It was and is my professional opinion that these activities carried out by [Mr.] Drader were the principal factors that caused the April 1996 slope failure, which resulted in extensive soil and vegetation disturbance at the base of the gully and extending several meters up the steeply-sloping banks of the gully.” [ 100 ] As a result of his site observations he notes that the natural sub-surface conditions within the gully generally comprise 3 types of soil being a relatively thin surficial layer of organic top soil, underlain by weathered surficial soils comprising of a relatively thin layer of weak silten clay derived from natural weathering of the underlying more competent soils, and very strong un-weathered silt and clay soils which can be described as hard clay not disturbed.

He notes that the most prevalent type of slope failure is the down slope movement of the surficial organic material and the weathered or weakened silt and clay soils which is referred to as surficial sloughing type slope instability. That is a natural mass wasting process common within steeply sloping terrain which can be exacerbated by inappropriate land development activities. Deep-seated failures are rare due to the strength of the underlying un-weathered soils. [ 101 ] Mr. Bradshaw noted widespread evidence of the surficial type of slope instability.

Some are related to areas disturbed by the clearing and development of the land or the disturbance caused by the April 1996 slope failure. Other areas of slope failures are in his opinion the result of natural mass wasting processes within the gully that continued to occur due to its significant height, steepness and marginally stable nature. [ 102 ] The second question is: “Do you agree with Ramsay’s opinion that other gullies on the perimeter of the Pemberton Hill area of Abbotsford show no evidence of instability?” [ 103 ] Mr. Bradshaw disagrees with Dr. Ramsay’s opinion in this regard.

He notes that no details or supporting information is provided. [ 104 ] Mr. Bradshaw reviewed historical aerial photographs taken of the Pemberton Hill area between 1938 and 2004. In those photographs he notes evidence of several inferred slope failures that have occurred within the steeply sloping terrain located to the north of Marsh McCormick Road on other properties. He particularly notes a failure inferred to have occurred between 1954 and 1963 at a tributary to the Drader gully which is shown in a 1963 photograph. [ 105 ] Mr.

Bradshaw has also noted evidence of slope failures on the banks of the Ravine on the Neighbour Property that in his opinion are not related to water flow in the creek channel or the April 23, 1996, failure.

He again attributes those surficial slope failures to the terrain which is steeply sloping combined with the soil conditions in the Pemberton Hill area which make it susceptible to shallow, surficial, sloughing-type of slope failure. [ 106 ] The third question is: “Do you agree with Ramsay’s and Kokan’s opinions that the City of Abbotsford redirected the flow of water from the northern roadside drainage ditch on Marsh McCormick Road to the Drader gully?” [ 107 ] Mr. Bradshaw further references historical aerial photographs taken of the area after 1938.

He concludes that Marsh McCormick Road was constructed prior to 1938. It is his opinion that the 1938 images show that the drainage ditch at the north side of Marsh McCormick Road discharged to the Drader gully since at least that time. 1963 and 1969 photos show natural and man-made watercourses also leading to the headwall area of the Drader gully. [ 108 ] He concludes that the only significant changes to the drainage system at the Property since the 1960’s were the changes made by Mr. Drader together with possible changes made by previous owners of the Property.

Those include filling, leveling and developing the watercourses that previously crossed the southern portion of the Property, and the construction of the north/south ditch, the Drader Ditch. [ 109 ] The fourth question is: “Has the fill material placed within the gully by Drader stabilized the gully slopes at his property?” [ 110 ] In responding to this question Mr. Bradshaw notes that Mr. Drader placed a significant quantity of fill materials within the upper limits of the gully on the Property prior to the April 23, 1996, slope failure.

That material was a significant contributing factor to that slope failure and most of it was transported down slope in the gully at the time of that failure. [ 111 ] The fill material now in the gully extends approximately 10 meters eastward onto the Neighbour Property. As the surveyors

were denied access by Mr. Drader for surveying in the area located to the north of the area which has been filled, the present topography is not known, but it is visible from photographs. [ 112 ] Mr. Bradshaw understands that the rock fill constructed by Mr. Drader in the gully was designed by Mr. Kokan.

That fill provides a buttressing effect that has improved the stability of the gully slopes adjoining the fill zone but some potential remains for surficial slope instability as a result of the original development of the Property or the 1996 slope failure or the continuation of the natural mass wasting processes over time. [ 113 ] The fifth question is: “Did the overflow of the drainage ditch that occurred on January 29, 2004, and January 13, 2006, destabilize the fill materials placed by Drader within the gully at his property?” [ 114 ] Mr.

Bradshaw notes from his review of the historical aerial photographs that the natural watercourses and drainage ditches that previously crossed the southern portion of the Property in a west-east direction and conveyed storm drainage to the Ravine were modified by Mr. Drader. He also notes the construction of the Drader Ditch, and interprets the surveys to conclude that the lowest point in the drainage system is the eastern bank of the Drader Ditch near the southwestern portion of the Property. [ 115 ] On Mr.

Bradshaw’s inspection of the Property on March 12, 2004, after the first Overflow Event he observed that water had recently flowed across the land and caused “relatively minor surface erosion and rilling of the near-surface soils.

On his inspection on September 23, 1997, he observed no residual effects or damage attributable to the Ditch overflow. [ 116 ] As a result of the thickness of the coarse and highly permeable rock fill and concrete rubble within the gully he opines that overflow from the Ditch is unlikely to have caused any damage or had any deleterious effect on the stability of the slopes at the Drader gully or elsewhere on the Property. [ 117 ] The sixth question is: “Is the water flowing within the drainage Right of Way at the Drader property causing damage or slope failures at the Drader property?” [ 118 ] As a result of the fill, which is coarse rock and concrete rubble several meters thick within the gully, the Right of Way and creek channel are obscured and cannot be inspected.

Mr. Bradshaw observed no other evidence indicating that the water flow in the Right of Way is causing damage or slope failures on the Property. [ 119 ] It is Mr. Bradshaw’s understanding based on Mr. Coles’ opinion that the flow rate of 1.5 m 3 /s described in the Right of Way agreement has not been exceeded.

In that regard he states: In my professional opinion the design and construction of the rock fill and concrete rubble fill zone should have been carried out by Kokan and Drader to accommodate the existing and foreseeable site conditions, including the potential for water flows within the drainage right of way of up to 1.5 m 3 /s.

In my opinion, any damage caused by the creek flow within the drainage right of way is attributable to limitations or deficiencies in the design of these works, their construction or both. [ 120 ] The seventh question is: “Is the water flowing within the creek channel at the adjoining property to the east (29399 Marsh McCormick Road) causing damage or slope failures at the Drader property?” [ 121 ] This question deals with any consequences from water in the Ravine or creek channel on the Neighbour Property affecting the Property. After a discussion of the effects of the 1996 slope failure, Mr.

Bradshaw states the following: Prior to April 23, 1996 slope failure, the base and banks of the creek channel were most likely covered by a layer of colluvial soil and vegetation that provided some protection to the base of the creek channel against erosion, and some protection to the banks of the creek channel against slope instability. These soils also provided some buttressing effect to the soils that mantled the slopes of the gully above the zone of active creek flow.

As described in my previous reports, the April 23, 1996 slope failure extensively disturbed and/or removed the soils and vegetation from the base and banks of the creek channel within the approximate limits shown in Drawing 8496-10, and thus exposed the underlying soils to erosion and destabilized the banks of the channel. Further, removal of these soils removed the buttressing support they provided to the soils lying higher on the slope, thus reducing their stability and increasing the likelihood for shallow, surficial sloughing-type instability both within the zone of disturbance and higher on the gully slopes.

In my professional opinion, any soil erosion or bank instability caused by water flow within the creek channel at the 29399 Marsh- McCormick Road property is mostly attributable to the damage and disturbance caused by the April 23, 1996 slope failure, which removed the surficial soils and vegetation from the creek channel that previously protected the creek channel from excessive soil erosion.

Further, it is my professional opinion that any instability that occurs at the banks of the creek channel that may be attributable to water flowing within the base of the gully is indistinguishable from instability that occurs due to the other factors outlined above. [the original site development, the April 1996 slide and its effects and natural mass wasting.] [ 122 ] He concludes that shallow, surficial type failures will likely continue on the Neighbour Property and throughout the gully including on the Property. [ 123 ] The eighth question is: “Kokan’s report dated March 14, 2011, summarizes his observations of new evidence of ground movement and slope instability at Drader’s property since September 11, 2007, do you agree with Kokan’s opinions on the nature and cause of these features?” [ 124 ] Mr.

Bradshaw responds to the six changes which Mr. Kokan notes at the Drader Property. [ 125 ] Subheading 1 of question eight is: Failure of the slopes within the gully located to the east of the main residence. This refers to the “Failure surface perpendicular to the ravine, on your property, just below the main residence.” Mr. Kokan was concerned that the continuing loss of support at this slide zone could make the bench adjacent to the main residence more at risk.

[ 126 ] Mr. Bradshaw notes that the area described by Mr. Kokan is an area where Mr. Drader removed vegetation and carried out excavation, fill placement and access roadway construction prior to and following the April 23, 1996, slope failure. Mr Bradshaw sees Mr. Drader’s clearing work and the 1996 slope failure as the most likely factors in the recent soil slumping-type failures which he has observed. He has not observed evidence that the failures are attributable to soil erosion in the creek channel.

He notes that soil on the upslope side of some mature trees indicate that the slope failure is not initiated from the creek channel down slope of the tree position. [ 127 ] He further notes that the area in question now has a northeast-southwest aligned access roadway [the cat road] which was constructed by Mr. Drader.

He opines that the construction of this roadway which changed the surface drainage pattern contributed to slope instability. [ 128 ] He further notes that as the surveyors were not allowed access to this area when they did their work in January and February 2011, there is no recent survey of the alleged slope failure features available for his review. [ 129 ] Subheading 2 of question eight is: Additional rock fill and concrete rubble placed within the gully by Drader. Mr. Bradshaw understands that the additional rock fills were placed by Mr. Drader on the geotechnical engineering input of Mr.

Kokan. [ 130 ] Subheading 3 of question eight is: Settlement and shifting of the coarse rock fill and concrete rubble at the base of the gully. As Mr. Kokan did not specify the location of the area of settlement and shifting of the fill at the base of the gully, Mr. Bradshaw could not locate it and it was not apparent on inspection. Again, he notes that this fill was placed with the geotechnical engineering input of Mr. Kokan, after the ROWA was in place.

The ROWA contemplated water flow up to 1.5 m³/s, and the design and construction should have been carried out to accommodate that potential period. [ 131 ] Subheading 4 of question eight is: Soil erosion at the base of the creek channel at the 29399 Marsh McCormick Road property. [ 132 ] Mr. Bradshaw has observed some evidence of soil erosion and instability in the banks of the creek channel on the Neighbour Property.

This is largely attributable to the disturbance from the April 23, 1996, slope failure as well as the natural mass wasting processes that have been active within the gully since its formation. [ 133 ] Mr.

Bradshaw has “not observed evidence that slope failures have occurred on the Neighbour Property due to soil erosion within the creek channel that have subsequently caused slope failures at the Drader Property.” He further states that even if such failures have occurred it would not be possible to distinguish them from slope failures caused by the disturbance that resulted from the 1996 slope failure. [ 134 ] Subheading 5 of question eight is: Slumping of soils from the gully slopes into the creek channel. [ 135 ] Mr.

Bradshaw describes this as part of the natural mass wasting process that led to the formation of the gully which was accelerated by the residual effects of the 1996 slope failure.

He also attributes soil slumping failures on the steeply sloping banks as a residual effect of the “significant disturbance to the surficial soils and vegetation that resulted from Drader’s land clearing and construction on his lands and the subsequent April 23, 1996, slope failure caused by this construction.” [ 136 ] Subheading 6 of question eight is: Settlement of the ground located to the west of the exposed rock fill zone within the gully, including settlement of the asphalt-surfaced Driveway. [ 137 ] Mr.

Bradshaw attributes the relatively minor subsidence of an area on the Driveway near the garage which forms a narrow east- west depression in the asphalt as likely attributable to settlement of fill or loss of ground within a trench excavation containing buried piping. It does not appear related to the gully slopes. [ 138 ] The area between the garage and the gully slope crest is likely attributable to the stability of a fill zone.

Any movement within the rock or concrete rubble fill zone was not able to be confirmed but would be a consequence of a limitation or deficiency in the design or construction. [ 139 ] With regard to Mr. Kokan’s recommendation and cost estimate for fill materials on the Property and the Neighbour Property, no designs were presented. Mr. Bradshaw was therefore unable to make any meaningful comment. [ 140 ] In cross-examination Mr. Bradshaw agreed that there was some exposure of deeper blue clay but could not say if that occurred in 1996. [ 141 ] It is Mr.

Bradshaw’s opinion that the slumping on the Property and the Neighbour Property is due to natural factors and the continuing effects of the 1996 slide. Slope failures on the Neighbour Property are not causing failures on the Property.

b) Christopher T. Coles [ 142 ] Christopher T. Coles is a registered professional engineer having obtained a Bachelor of Science Degree in Civil Engineering and a Master of Applied Science Degree in Civil Engineering. He has over 14 years experience in Hydrotechnical Engineering including rainfall/runoff analysis and culvert and open channel flow assessments. The calculation of water flows and the capacity of pipes are significant parts of his expertise.

He was qualified as an engineer with a particular expertise as a hydrologist in water resources and hydrologic computer modelling. [ 143 ] At the request of the City he carried out a Hydrotechnical analysis of the watershed which flows to the Right of Way, and a review of the report of Dr. Ramsay. [ 144 ] In his Hydrotechnical Engineering opinion report, Mr. Coles discusses the following questions: 1. What is the hydrological setting of the lands which drain to the Right of Way?

2. Has the flow in the Right of Way exceeded 1.5 m³/s since March 26, 2001? 3. Did the flow in the Right of Way exceed 1.5 m³/s on January 29 and 30, 2004 or January 13, 2006? 4. Given the nature of the Right of Way watershed and the hydrological factors involved can it be expected that the Right of Way will receive flows in excess of 1.5 m³/s? If so, how frequently will this occur?; and 5. What is the maximum capacity of the Culvert under the Driveway which leads from Marsh McCormick Road to the Drader Property? [ 145 ] In order to calculate the volume of water flowing into the Right of Way, Mr.

Coles first discusses the area from which the water flows, or the watershed. He began his analysis with a topographic map purchased from the City, and then identified the particular surfaces which contribute runoff to the Right of Way. The boundaries of the resulting map were verified with site observations. [ 146 ] He concluded that the watershed area is 11.6 ha. This is smaller than the 14.7 ha area reported by Dr. Ramsay because the flow from one area is conveyed away from the Right of Way by a culvert adjacent to 29095 March McCormick Road. There was no evidence of that culvert being blocked as Dr.

Ramsay assumed it may be. [ 147 ] Another variable to be considered is land use and surficial geology. The land use is developed with homes, pastures, treed area and driveways. The surficial geology influences the rate at which rainfall infiltrates into the ground and therefore influences the amount of direct runoff. The surficial soil is stony silt or loamy clay which results in comparatively low infiltration rates and higher runoff rates. [ 148 ] The “time of concentration” of a watershed is the amount of time it takes for runoff from the most distant point to reach the outlet.

It is used to determine the duration of a storm event which would produce the maximum runoff. Mr. Coles estimates the time of concentration of this watershed to be 0.20 hours or 12 minutes which is very similar to the estimate of 0.19 hours or 11.4 minutes in the Ramsay report. [ 149 ] Rainfall data is an important factor. Mr. Coles relies on the Environment Canada data from the meteorological station at the Abbotsford Airport which is approximately 15 km south of the Property.

Although the Property is about 50 m higher than the airport, this precipitation data, which is from a higher elevation than the Mission station, is considered representative. However, as no short duration records are available for the Abbotsford Airport station after 2002, there is no record of actual storms that would be part of the critical duration for this watershed after 2002.

He therefore relied on short duration precipitation data from other nearby meteorological stations for the period from March 26, 2001 to December 31, 2010. [ 150 ] The two precipitation events which were identified as having the highest potential runoff rate were August 9, 2008 and September 19, 2010. The rainfall figures were respectively a one day total precipitation of 32.8 mm and 41.8 mm, and a peak 15 minute intensity of 43.7 mm/hr and 32 mm/hr.

For the purposes of the second date, it was conservatively assumed that the soil conditions were saturated at the time of this event as it had been raining on the previous days. [ 151 ] The dates of the two Overflow Events were also evaluated. January 29 and 30, 2004, had a total precipitation of 34.8 mm and a peak 15 minute intensity of 11.6 mm/hr. On January 13, 2006, the one day total precipitation was 61.2 mm and the peak was 8.0 mm/hr. It was also conservatively assumed that the soil conditions were saturated at the time of these events. [ 152 ] Mr.

Coles concludes that the Overflow Events of 2004 and 2006 are not considered to be extreme and that the precipitation depths recorded on these days have been exceeded numerous times between March 26, 2001 and December 31, 2010. [ 153 ] In order to answer the second question regarding the flow in the Right of Way since March 26, 2001, Mr. Coles utilizes the same two methodologies as in the Ramsay report in order to be consistent and since he finds those to be reasonable for the intended use.

His opinion is that the peak rate of runoff from the watershed was 0.66 m³/s or 0.53 m³/s depending on the method used. [ 154 ] The Rational Method is a relatively simple methodology. It is a form of coefficient that relates physiographic characteristics of the watershed to its hydrologic response to rainfall. Mr. Coles selected the highest value of 0.40 for the coefficient “C” to provide a conservatively high estimate of peak runoff rate. [ 155 ] The analysis was completed for the dates of the two highest potential runoffs: August 9, 2008 and September 19, 2010.

The results indicate that the peak rate of runoff from the Right of Way since March 26, 2001 was 0.66 m³/s. No comparison to the Ramsay report was possible as, although it utilizes this method, it does not present a value. [ 156 ] The TR-55 hydrologic modelling platform was also used by Dr. Ramsay. Using the TR-55 methodology, Mr. Coles opines that the peak rate of runoff from the Right of Way since March 26, 2001, is 0.53 m³/s. The CN value of 79 was used in the TR-55.

For the September 19, 2010, event it was adjusted based on the assumption that the soil was saturated from several prior days with rain. [ 157 ] The model

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